Port Orange DUI Policies And Procedures

Attorney Kevin J. Pitts is a Daytona Beach DUI Attorney that frequently handles Port Orange DUI cases. Mr. Pitts is a former Daytona Beach DUI prosecutor that has focused his practice exclusively on criminal defense, DUI defense and traffic ticket defense since 2010. Mr. Pitts has obtained the Port Orange DUI Policies and Procedures through a public records request. If you are accused of a DUI in Daytona Beach, Port Orange or the surrounding areas contact Mr. Pitts at 386-451-5112 to set up a free consultation.

Daytona Beach DUI Attorney Kevin J. Pitts

The purpose of this directive is to establish policy and procedures for the enforcement of state laws prohibiting the operation of a motor vehicle while impaired due to alcohol or other controlled substances in accordance with FS 316.193, Driving (or in actual physical control of) a Motor Vehicle Under the Influence of Alcohol or Controlled Substances (DUI); or FS 316.1934(2)(b) Driving While Impaired (DWI).

The primary objective of DUI enforcement is to reduce alcohol and/or drug related traffic offenses through training and equipping patrol units to apprehend and process alcohol or drug-impaired drivers.

Enforcement of DUI traffic laws is an important duty of the law enforcement officer charged with protecting the public welfare. Drivers impaired by alcohol and/or drugs represent a serious threat to public safety. A comprehensive DUI enforcement program is necessary.

Florida law requires law enforcement officers to seize the driver’s licenses of persons arrested for DUI under certain circumstances. The underlying intent of the law is to provide an immediate impact at the time of the DUI arrest. This directive will address law enforcement efforts in the areas of detection, apprehension, arrest, processing, and seizure of driver licenses. The procedures contained herein are intended to provide a uniform method for investigating and processing a DUI violation.

It shall be the policy of the Port Orange Police Department to vigorously enforce the DUI traffic laws of the State of Florida. All uniformed officers shall make a concerted effort to detect and apprehend those persons suspected of violating DUI and DWI laws. All officers affecting an arrest for violation of FS 316.193 shall adhere to the provisions of FS 322.2615 relating to the seizure and suspension of driver licenses.

While each DUI traffic stop is unique, the following procedures shall be followed as closely as is It is recognized that in some cases the level of intoxication may be so high that some procedures may be impractical. If an intoxicated driver becomes belligerent, it may become necessary to physically secure the offender to minimize the danger of injury to the public, the officer, and/or the offender.

All patrol officers shall complete DUI detection and field sobriety training in the Field Training Program and receive appropriate in-service refresher training at the shift level as needed.

An impaired driver may be detected in a variety of Frequently, the officer may first suspect the driver is intoxicated upon the initial face-to-face meeting after stopping the vehicle for some other reason. If the officer suspects intoxication prior to the traffic stop, it is important that the officer first establish reasonable suspicion to stop/approach the offender during this phase. Reasonable suspicion to stop a vehicle may be established by the following means:

The officer observes a violation of state or local traffic laws, or other violation that gives the officer cause to stop the vehicle for the purpose of investigation or to take enforcement action.

The officer observes specific behavior or driving style that indicate a high probability that the driver may be impaired by alcohol and/or drugs.

The officer locates the occupied vehicle based upon a description from a citizen’s complaint of erratic, improper, or reckless driving.

The vehicle and/or occupants are suspected of involvement in a criminal act.

The vehicle and/or driver have been, or are suspected of, involvement in a recent traffic accident.

In car video cameras, in cars so equipped, shall be activated to record the driving characteristics of the vehicles operator.

Officers shall exercise due care and caution in following impaired drivers and be alert for unusual or inappropriate reactions from the driving.

The officer shall note the indicators present and shall be able to articulate those factors in any subsequent arrest reports and/or court proceedings.

Once reasonable suspicion has been established, the officer shall conduct a traffic stop in accordance with the provisions of Directive 61.3 Traffic Enforcement. The officer shall carefully observe the driver’s actions and driving during this phase to gather further evidence to support an arrest.

If at all possible, and without jeopardizing officer safety, traffic stops and/or field sobriety battery should not take place in the parking lots or environs of restaurants and bars.

Once the vehicle has been stopped, the officer shall approach with The officer will be alert to signs of intoxication due to alcohol and/or drug use. This investigative process is continuous as long as the officer is in contact with the offender. The following procedures shall apply, when applicable.

Upon the initial approach to the vehicle, the officer should look into the vehicle interior for such plain- view evidence as open containers of alcoholic beverages or narcotics residue or paraphernalia.

The officer should request the driver’s license, vehicle registration, and insurance card. The officer shall note the driver’s actions when asked to retrieve these The officer shall be alert for the odor of alcoholic beverages and shall note any physical characteristics indicating alcohol and/or drug use.

If the driver is suspected of being intoxicated, he/she will be asked to exit the The officer will note the driver’s balance, demeanor, speech, and general appearance.

The officer will advise the driver of the specific reason for the traffic stop (i.e. speeding, improper lane change, equipment violation, etc.). At this point the officer may proceed with processing the traffic infraction while continuing to observe the driver for signs of impairment due to intoxication.

Upon a reasonable suspicion that the driver may be impaired due to alcohol and/or drugs, the officer will request a back-up unit to assist.

Field sobriety exercises and interviews shall be video taped unless extenuating circumstances such as bad weather, safety hazards at the location, or the driver is violent or too impaired to perform the Officers may videotape and conduct the exercises in the holding facility if such extenuating circumstances exist on the scene.

If using a handheld camera, the back-up unit shall activate the video camera with the arresting officer and the offender in front of the camera. The arresting officer shall use the DUI Processing Form throughout the investigation and taping.

Once video taping has begun, it should not be stopped or interrupted until the physical performance exercises have been completed, unless the camera is stopped for a legitimate If the camera is stopped, the time will be noted on camera when stopped and when taping is resumed.

The arresting officer will announce his/her name, the date, time, location and case number following the format on the DUI Processing The officer will follow the format in conducting the performance battery and questioning of the defendant. The officer may deviate from specific questions when the circumstances of the case or exercises call for additional explanation.

The officer will explain that the defendant should first watch the officer demonstrate each exercise and not try the exercise until asked by the officer. The Standardized Field Sobriety Battery shall consist of the Walk and Turn, One-Leg Stand, and HGN exercises. The physical condition of the subject may require the administration of sobriety exercises such as the “finger count and hand pat”, or the Modified Romberg Balance exercise.

Generally, no more than three explanations and/or demonstrations of the same exercise will be The defendant will be allowed no more than three attempts at performing the same exercise. The officers will not give any opinion to the defendant as to his/her performance of any exercise. The terms ‘pass, fail or points’ shall not be used in any documentation of the battery. The wording shall be that the defendant ‘exhibited clues’ when referring to performance.

The officer will question the defendant as to use of controlled substances if, upon completion of the field sobriety battery, the arresting officer suspects’ illegal drug use.

The defendant will be allowed to make any statements and explanations as desired.

The camera operator will capture a full-face close-up view of the defendant for at least 15 seconds during initial interview.

If sufficient probable cause has been established, and all elements of the DUI violation (including operation or actual physical control of a vehicle, while under the influence of alcohol and/or a controlled substance, within this state, when affected to the extent that the person’s normal faculties are impaired) have been clearly established, the officer shall advise the subject that he/she is under The offender will be handcuffed immediately.

The defendant will be asked if he/she will submit to a breath If the defendant refuses to submit to testing per Florida’s implied consent law the officer will read the defendant the Florida Implied Consent Law and the associated penalties.

The defendant will be read the Miranda Warnings and asked if it is understood.

The defendant will be searched and seat-belted inside a caged department This point shall be the end of the video taping. (CALEA 41.3.3,)

The officer shall immediately notify Communications of the arrest. This will be the official time of arrest.

The officer shall make appropriate disposition of the defendant’s vehicle and property in accordance with Directive 41-11 Vehicle Towing (or authorized alternatives), arrange for transportation and safety of any passengers.

The subject will be transported to the holding facility for evidential testing (if not refused) and processing in accordance with Directives 70-1 and Directive 71-1.

The breath-alcohol test shall be the normal test requested of a DUI offender.

The arresting officer shall assure that evidential chemical test(s) are conducted in accordance with state/local requirements. See details below under ‘Chemical Testing’ heading.

If the subject’s BAC is less than .08%, the officer shall investigate for drug usage or medical conditions that may be the cause of impairment.

Those suspected of being under the influence of drugs will be requested to provide a urine or blood sample for drug See additional details under the ‘Chemical Testing’ heading below. A Drug Recognition Expert may be made available to assist with screening the defendant. Reference Directive 41-17 DRE for call-out protocol.

An officer may require a person to submit to blood testing only when the officer has probable cause to believe that the driver was the operator of a vehicle involved in a crash resulting in serious bodily injury or death pursuant to provisions and restrictions of FS 1993(1) – see the DHSMV Affidavit of Refusal form for details. See also information below under the heading ‘Chemical Testing – Blood/Urine.’ Absent consent, exigent and unusual circumstance a search warrant will be required to obtain a blood sample. Reference the procedures delineated in 61-7.

If the offender becomes ill, unconscious, or otherwise incapacitated, he/she shall be transported to a hospital emergency room for treatment. If incapacitation occurs prior to the taking of a breath sample, and a blood sample is taken resultant of the examination/admittance process, officers may subpoena the blood test result and or request a search warrant to seize the blood sample if preserved.

A Blood Withdrawal FDLE/ICP Form will be completed when applicable and attached with the original paperwork. The back of refusal form shall not be used for this purpose.

Upon receipt of laboratory results indicating a BAC level of .08% or higher, or indicating the presence of drugs, the subject will be charged on a standard UTC. The officer will indicate ‘issue by warrant’ on the offender signature line. The driver license will be suspended administratively by the Bureau of Driver Improvement.

Persons arrested for DUI are required by state law to remain in jail for eight (8) hours or until the blood alcohol drops to .05%. All DUI arrestees will be transported to the County Jail.

When sufficient evidence of impairment pursuant to FS 1934(2)(b) .000 to .079 BAC – exists to establish probable cause for arrest, officers shall charge under this statute and transport the arrestee to the county jail. Every effort will be made to gather evidence through the observations of the officer and appropriate testing.

An arrestee who is suspected of DUI but produces a .08% BAC or less shall not be released from custody based on the BAC level When the BAC result is less than .08%, the officer shall notify his/her supervisor. The supervisor will consult with the officer on the appropriate disposition of the arrestee. Under no circumstances shall the arrestee be released from custody when the officer believes the person is unfit to drive. (CALEA 61.1.11)

If a DRE has determined that the impairment is resultant of a medical condition and not drug influence then the arresting officer should proceed as directed by the DRE or a supervisor; minimally

The arresting officer should complete a Driver’s Re-examination form and an effort should be made to contact a responsible person to take custody of the subject and their vehicle keys.

If the vehicle was towed the operator/owner will need to contact the tow company and complete the normal repossession procedures, to include payment of tow fees, to have the vehicle returned.

Commercial Motor Vehicle Operators: FS 62 provides that a driver who has any alcohol in his or her body may not drive or be in actual physical control of a commercial motor vehicle. A violation of this section is a moving violation and may be charged under this statute separately from any violation of FS 316.193. Refer to FS 322.63 for CDL implied consent requirements when a driver is suspected of drinking alcohol or using drugs while driving.

CDL operators charged under 322.62 are prohibited from driving for a period of twenty-four (24) hours. A Notice of Commercial Driver’s License/Privilege Disqualification shall be completed for breath test refusals under this statute (when there is no citation issued for FS 193). Breath test results in excess of .08% shall be charged under FS 316.193 DUI.

Discretionary privilege: Members of the department may be required to handle certain individuals in accordance with the provisions of Directive 1.6 Uncommon Enforcement Procedures. Officers shall refer to this directive when encountering the following individuals in regard to DUI charges: diplomats, military personnel, federal or commercial vehicle operators, Congressmen, foreign nationals and juveniles.

DUI Bicycle cases: Members of the department are strongly encouraged to use a DUI arrest of a bicycle rider as a final All other means of resolving the problem will be explored before a subject is charged with DUI. Alternatives to a DUI arrest include, but are not limited to:

Disorderly intoxication charge, if applicable;

Transport to the branch jail, or a detoxification or medical treatment center pursuant to the Marchman Act.

The subject is to be arrested for another violation, such as an outstanding warrant or another unrelated crime.

If an arrest is deemed necessary due to aggravating circumstances, such as the rider caused (or nearly caused) an accident, property damage and/or injury to another, the following procedures differ from a DUI involving a motor vehicle:

No DUI UTCs is A regular UTC will be issued for refusals and breath test results of over .08% BAC.

The subject’s license shall not be seized.

A Refusal form, if applicable, will be completed for documentation.

Miranda Warnings will be read if the subject is removed from the scene due to weather conditions or the subject is going to be arrested for another Miranda applies to verbal responses during the interview, but does not apply to submission to the breath test.

Notations of the blood-alcohol level on all forms shall be written in the following format:

‘0.08 g/210L’ – this is an abbreviation for ‘0.08 grams of alcohol per 210 liters of breath’ using an example for .08% BAC. The actual test result figure will be substituted for the ‘.08’ figure.

The officer will issue a FL DUI Uniform Traffic Citation, seize the driver license(s) and attach the license to the blue copy of the UTC under the following circumstances: (CALEA 1.11)

Drivers with a BAC of .08% or higher; OR

Drivers who refuse to take a breath, blood or urine test. This applies regardless of the BAC level in the case of a subject who takes the breath test but refuses a blood or urine test.

An arrestee has a BAC less than .08%, is suspected of being under the influence of drugs, and has submitted to a urine or blood test for drug testing.

The driver license is not subject to immediate seizure/suspension in these cases.

The following documents in addition to the SA707 and incident report are required when the arrestee has submitted to a breath test:

After the breath test, the operator must complete the Breath Test Result Affidavit (FDLE/ATP form 38). The operator’s name must be signed, printed and attested to.

The arresting officer will complete the DUI Processing form.

The arresting officer will complete the DUI checklist.

The defendant will be provided with the results of his/her breath tests.

The original forms will be submitted with the arrest package to the supervisor. A copy of the test results and Alcohol Influence form will be attached to the jail paperwork.

The following documents in addition to the SA 707 and incident report are required when the arrestee refuses a breath test:

The original refusal form HSMV 72054 must be attested to and submitted in with arrest A copy of the refusal must be sent to the County jail with SA 707.

Completed Alcohol Influence report must be submitted with the arrest A copy will be attached to the jail paperwork.

The officer will complete the DUI checklist.

The subject’s driver license(s) will be attached to the blue copy of the citation.

Department forms and reports must be completed as required thoroughly documenting all evidence gathered during the investigation and indicating the results of all field sobriety exercises and/or chemical tests administered.

The officer will forward the citation(s), all reports and supporting documents to the shift supervisor for review prior to See Directive 71.1 Prisoner Processing heading ‘Document Distribution’ for further details on distribution of arrest documents.

The purpose of this directive is to establish uniform procedures for the enforcement of the under age 21 DUI law.

FS 2616 states that it is unlawful for a person under the age of 21 to drive a vehicle if the person has a blood alcohol level (BAC) of 0.02 or higher.

FS 2616(l)(b) permits a law enforcement officer to detain any person under the age of 21 for the purpose of obtaining a breath test if the officer has probable cause to believe that the person was driving or in actual physical control of a motor vehicle while having a measurable breath alcohol level.

A driver under the age of 21 whom has a BAC of 0.02 or higher will have his driving privilege suspended for a period of six months for the first violation.

The person under age 21 who refuses to submit to a lawful breath test will have his driving privilege suspended for one year for a first refusal.

The Port Orange Police Department has adopted the following procedures in the enforcement of this law.

Lawful contact must be made before an underage driver can be checked for a violation of 2616. Lawful contacts include:

Traffic stop related to Florida law;

Contact at a sobriety checkpoint;

Contact at the site of a traffic crash;

A consensual encounter with an underage driver.

Officers will conduct a DUI (as described in this directive) investigation to rule out the possibility that the driver is legally impaired under FS 316.193 by:

Interviewing the driver, verifying the driver’s age and check for signs of impairment;

Assessment of the driver’s performance on Standardized Field Sobriety exercises;

Ruling out probable cause to make an arrest for DUI when appropriate.

A violation of section 322.2616 is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an However, section 322.2616(18) states that it does not bar prosecution under section 316.193.

Check for a violation of FS 2616. If probable cause does not exist to arrest the driver for DUI, the driver may be in violation of the .02 law. The officer will determine if there are indications that the driver has been drinking, such as the odor associated with alcoholic beverages, opened or unopened containers in the vehicle, or other signs. If the officer believes that the driver is possibly in violation of 322.2616 the officer will:

After observation of the driver for 15 minutes, a request will be made that the supervisor responds to the area with a Portable Breath Testing devise (PBT).

The officer will request the driver to perform a breath test consisting of two samples on the The operator will have been trained in the use of the PBT.

If the two breath samples yield BAC of 0.02 or higher the officer will take the driver’s license and issue a suspension using forms provided by DHSMV.

If the driver refuses to give a breath sample, the officer will read the implied consent warning to the If the driver continues to refuse, the officer will take the driver’s license and issue a suspension using forms provided by DHSMV.

If the driver gives one breath test and refuses to give a second sample, the officer will take the action that is warranted based on the first sample.

A driver 16-20 years of age who is suspected of DUI but produces a .08% BAC or less and is not arrested for another violation shall not be released from custody based on the BAC level When the BAC result is less than .08%, the officer shall notify his/her supervisor. The supervisor will consult with the officer on the appropriate disposition of the subject. The parent or legal guardian of a juvenile driver will be contacted and requested to respond to take custody of the juvenile.

Officers shall fully document all .02 law investigations including the circumstances of the stop and the steps taken to insure the safety of the driver.

Officers completing a suspension under FS 2616 shall complete the following documentation:

The notice of suspension provided by DHSMV.

The probable cause affidavit.

The PBT breath test result affidavit, if applicable.

The affidavit of refusal to submit to a breath test, if applicable.

Secure the driver license to the notice of suspension.

Drivers will not be charged under both If a driver is arrested for DUI and found to be less than 21 years of age, the officer will not write a suspension under 322.2616. The normal DUI suspension procedure will be utilized.

Operation of the PBT – only trained operators will administer breath tests with the PBT.

Routine care and service of the PBT – Department intoxilyzer maintenance technicians will be responsible for maintaining the PBTs as follows:

All PBTs will be calibrated according to manufactures recommendations.

All PBTs will be checked for accuracy according to manufacturer’s instructions.

The PBT maintenance technician will keep a service log of all service performed on all the PBTs.

Persons arrested for DUI must be observed for at least 20 minutes to insure they have not taken anything by mouth nor regurgitated before the breath test is administered. This observation can be by the arresting officer and does not require the breath test technician to observe the subject for an additional 20 minutes.

An FDLE certified operator will administer the breath test. The operator will follow FDLE rules, regulations, and procedures while administering the tests.

All breath test operators will utilize latex protective gloves and eyewear during the entire breath test process to protect against biological infectious The breath-testing officer will use special care in handling and disposing of the used mouthpiece.

department will not offer blood or urine tests as a routine procedure. The department is not obligated to inform defendants that they may request independent testing.

If the defendant requests a blood or urine test, the request may be granted only after the defendant has submitted to the breath test. Blood or urine tests will be administered at the defendant’s own Department personnel will afford the defendant a reasonable amount of time to have the tests conducted by individuals of the defendant’s own choosing within the Halifax area.

Defendants requesting tests will be provided with a phone and a If the defendant locates a local facility, the officer will verify that the subject has the money in possession to pay for the test. The subject will be transported to a hospital, clinic, or other medical facility for the purpose of obtaining test samples. An authorized person as defined in Florida Statute 322.261 will obtain the test samples from the defendant.

Independent test requests and the officer’s compliance (or attempts) shall be fully documented in the arrest report, including the names of the facility and person drawing the The officer shall have no evidentiary duty regarding this sample.

Crash investigations – when an officer investigates an accident and determines that one or more of the drivers may be impaired and cannot submit to a breath test, the officer shall request that a sample of the suspected person’s blood be drawn for analysis. Absent consent, exigent and unusual circumstances a search warrant will be required for a forced blood draw. Reference procedures in Directive 61-7.

Conscious victims shall be informed of the implied consent If not conscious, and a search warrant has been issued, the blood sample shall be drawn as follows:

The officer shall make the request at the scene, when a doctor, paramedic or other authorized person is administering medical treatment.

A paramedic can be summoned to the scene of an accident or the holding facility to draw blood from a DUI suspect, even though the paramedic is not there for medical treatment reasons.

Should the person/accident victim be transported to a medical facility for treatment, the officer shall inform the medical personnel that a blood sample is needed.

The investigating/requesting officer shall supply the test kit.

The officer shall remain with the subject while the blood is drawn to maintain chain of custody.

The Department of Health and Rehabilitative Services specifies in Chapter 10-D-42, Implied Consent, that certain procedures must be followed in the collecting and labeling of blood samples for the purpose of determining blood alcohol, chemical or controlled substance content.

Blood testing: All blood specimen containers shall be labeled and shall contain as a minimum the following information:

Name of person tested,

Date and time specimen collected,

Initials of personnel administering or collecting the specimen.

Blood specimens shall be collected in a container containing sodium fluoride or other acceptable anticoagulant-preservative substance. The container shall be stoppered or sealed to prevent loss by evaporation.

Failure to comply with this procedure could constitute grounds for dismissal of charges against the defendant. Clotted blood samples will not be analyzed for blood alcohol content.

A Toxicology Work Request form will be completed by the arresting officer and submitted with the property receipt. The blood specimen will be place in a locked evidence refrigerator.

Urine Testing: In accordance with state law, a urine test may be required of a subject suspected to be under the influence of drugs other than alcohol.

Whenever possible, the arresting officer shall witness collection of the urine, using due regard for the privacy and sex of the When the subject is the opposite sex of the arresting officer, an officer of the same sex as the subject shall witness collection of the urine, or if such officer is not available, an officer from another jurisdiction who is the same sex as the subject may be requested to do so.

When collecting and physically processing a urine specimen, the officer shall wear rubber gloves provided by the department.

Sterile plastic containers, stocked in the evidence processing room, shall be used to collect urine. The officer shall insure that the sample contains 50 milliliters of urine, as indicated on the container.

The officer shall seal the container with evidence tape and affix a label containing the following information:

Subject’s name;

Date and time sample was taken;

Case number;

Name of person collecting specimen;

Name of arresting officer (if different than the person-collecting specimen).

A Toxicology Work Request form will be completed by the arresting officer and submitted with the property receipt.

The urine specimen will be placed in the locked evidence receipt.

Inspections of the Intoxilyzer 8000 shall be completed once per calendar month in accordance with FDLE Rule 11D-8 and FDLE/ATP form 39 AGENCY INSPECTION PROCEDURES – INTOXILYZER 8000.

The agency inspector shall keep the original FDLE/ATP Form 40, which is generated after the inspection, in a securely locked cabinet or storage facility.

Copies shall be distributed to:

The Port Orange Records Section for the purpose of court and deposition proceedings.

The State Driver Improvement office.

Prior to completing the inspection, insure that the Intoxilyzer area has been properly stocked with sterile mouthpieces, and Intoxilyzer operational checklist.

The Agency Inspector will insure that a monthly report is provided to the Patrol Division Commander/Captain. The monthly report will be due within five days of completing the inspection and will minimally contain the following information:

A list of any problems with procedures or equipment that was revealed during the inspection;

A plan of action to correct any problems detected;

Any scheduled or unscheduled repairs that are being done on any breath testing equipment.

The Agency Inspector is responsible for insuring that any and all problems with equipment and/or procedures that are used in connection with the breath testing equipment are reported to the Patrol Division Commander/Captain. The Agency Inspector shall bring any issue that might affect the prosecution of any case to the attention of the Patrol Division Commander/Captain.

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About daytonabeachduiattorney

Daytona Beach DUI attorney Kevin J. Pitts handled over 5,000 cases as a DUI prosecutor and defense attorney. Mr. Pitts has successfully completed the 16 hour breath test operator course in Seminole County giving him valuable insight into the Intoxilyzer 8000. If you are fighting a breath test you should have a Volusia County DUI lawyer that not only has been tested on the Intoxilyzer 8000 but who also knows how to operate it. The Law Offices of Kevin J. Pitts has offices in Daytona Beach and Sanford.
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